Weekly Case Summaries: July 17, 2009

Texas Courts of Appeals

DeLeon v. State - 7th COA

07/09/09 : Cite No. 07-07-0325-CR : Stacking Sentences

Issue

After the defendant's conviction for multiple counts of aggravated sexual assault, sexual assault, and indecency with a child, did the trial court correctly assess punishment under Penal Code §3.03 when it stacked counts with offense dates prior to September 1997 on top of counts with later offense dates?

Holding

Yes. Because the punishment did not exceed the statutory limit that was in effect at the time when the offenses occurred, the stacking was permissible.Read opinion.

Commentary

Let's start by acknowledging that the defendant's legal issue is merely academic because he starts by serving a 99-sentence (with a 30-year flat time before parole eligibility) regardless of how this case comes out. And, even if the defendant won on his issue, the stacking order would leave him faced with a 120-year stacked sentence (with a 60-year flat time before parole eligibility). The court of appeals provides a very thoughtful analysis of the part of the bill that few read: the effective date language. As the legislature expands the stacking law in the future, this case could be an important reference for how to word that provision. And now the defendant will have to finish a 99-year sentence and then begin a 120-year series of sentences. Good luck with that.

Grays v. State - 14th COA

07/14/09 : Cite No. 14-08-00051-CR : Cumulating Sentences

Issue

Was the defendant's sentence correctly assessed when the trial court ordered cumulation of the defendant's sentence of 13 years for burglary of a habitation with his sentence of five years for aggravated sexual assault of a child after it failed to orally under the cumulation during sentencing?

Holding

No. While the trial court heard the State's motion to cumulate, it withheld ruling on it until the State submitted a written motion with supporting case law. This action did not establish the trial court's intention to cumulate sentences and did not establish that the defendant agreed to allow the trial court to cumulate his sentences at a later date outside his presence. The State offered no authority creating an exception to the statutory requirement that sentencing for a felony offense must be pronounced in the defendant's presence nor any authority establishing an exception to the general rule that when there is a conflict between the oral pronouncement of sentence in open court and the sentence set out in the written judgment, the oral pronouncement controls.Read opinion.

Commentary

The prosecutor said at sentencing, "And I don't know the proper time for you to rule on [the motion to cumulate]...." As we have seen in other cases, the proper time is at sentencing when the defendant is standing before the court. Otherwise, the judge loses jurisdiction over the case. So, if the judge wants additional time to consider a request to stack sentences, the case should be reset for formal sentencing in the presence of the defendant at a later date.

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